Strawman Conundrums: ICANN, WCIT, and the Multi-Stakeholder Process

The International Telecommunication Union’s (ITU) World Conference on International Telecommunications (WCIT) concluded its Dubai meeting in some disarray last week, with 89 nations (with a collective population of 2.6 billion) signing the revised International Telecommunications Regulations (ITR) and 54 (with a collective population of 3.8 billion) abstaining and thereby effectively saying ‘No’. Ironically, the host nations of the next two ICANN meetings – China and South Africa – voted in favor of an ITR that appears to favor replacing ICANN’s multi-stakeholder Internet governance model with one that would cede far more power to governments that want to censor the free flow of information and commerce. The WCIT’s conclusion inspired some predictions that a new virtual “cold war” had commenced, with a real danger that ICANN’s vision of “one world, one Internet” could be replaced by “one world, many Internets”.

U.S. Ambassador Terry Kramer, in clear defense of ICANN, cited Internet governance as one of the five key reasons why the U.S. had abstained from approving the ITR: “Number four, internet governance. In several proposals, it was clear that some administrations were seeking to insert government control over internet governance, specifically internet naming and addressing functions. We continue to believe these issues can only be legitimately handled through multi-stakeholder organizations.”http://www.state.gov/e/eb/rls/rm/2012/202040.htm

Now it will be several years before all the nations signing the ITR can actually get through their formal processes for doing so, and even if they do so it will not necessarily translate into a balkanized and censored Internet. So the jury is still out on the full ramifications of Dubai. And, even without the ITR, there is nothing to stop any government from trying to curtail its citizens’ free access to the Internet — and there are numerous examples today where they are doing so. The real danger would come if the Internet functions presently conducted by open and transparent multi-stakeholder groups became the exclusive province of governments operating with the authority of an international organization in which other stakeholders were relegated to the sidelines.

Given post-WCIT uncertainty of the Internet’s future course, and the divided opinion over whether ICANN is getting the Internet governance job done in an effective, balanced and trustworthy manner, it would seem especially important for ICANN to go about its work in a maximally criticism-proof manner. Yet today we are witnessing a fierce and unprecedented debate over whether ICANN is formulating policy in an even-handed and predictably consistent manner.

That present debate is over the “Strawman Model” that grew out of the recent Trademark Clearinghouse meetings conducted by new ICANN CEO Fadi Chehade. ICA has previously expressed its concern that these meetings were invitation-only, not publicly noticed, and provided for no remote participation or even observation. CEO Chehade’s most recent ICANN Blog post on this subject can be found at http://blog.icann.org/2012/11/a-follow-up-to-our-trademark-clearinghouse-meetings/ , and in it he pledged, “I will be sending a message to the GNSO Council asking it for guidance on the Scope of Trademark Claims. In addition, the strawman model will be posted this week for public comment.”

ICA will of course comment on the substance of the proposals being considered, but for now we want to dwell about more about concerns arising from the process by which this purported “Solution” has been created. Rather than expand on our earlier thoughts (see http://internetcommerce.org/LA_Straw%28Man%29 ) we’d like to cite some comments recently made by others that we find of particular merit.

Our prior post had cited the critique issued by Robin Gross, head of ICANN’s Non-Commercial Stakeholder Group, in which she forcefully stated, “We have the same obligations to accountability to the community, transparency of process, and equality of participation among impacted stakeholders in the development of policy at intercessional meetings that we have at other policy development meetings. Neither executive decisions nor private negotiations among select parties fulfill ICANN’s commitment to the bottom-up multi-stakeholder policy development process.” (Emphasis added/ see http://www.circleid.com/posts/20121119_icanns_11th_hour_domain_name_trademark_policy_negotiations/).

More recently, the recently departed head of the GNSO Council itself, Stéphane Van Gelder, expressed concern that the manner in which the Strawman Model had been developed constituted a direct attack on ICANN’s multi-stakeholder model, “The basic premise of the ICANN system is simple and fair: get all parties to work together, give everyone an equal voice, and act on whatever consensus emerges. ICANN insiders have coined this the “multi-stakeholder, bottom-up, policy development process”…But to some, this system has a major flaw: it doesn’t always allow them to get their way. Because ICANN policy making is based on consensus, any progress has to rely on some measure of give from parties. It can’t all be take…So what to do when the outcome isn’t exactly what you wanted? Most accept the result and console themselves with the knowledge that doing so strengthens this new governance model. But some never stop looking for any opening to push through their views. Even though by doing so, they are actually endangering the system as whole.” (Emph
asis added/ see http://www.circleid.com/posts/20121102_attacking_the_multi_stakeholder_model/)

Likewise, long-time ICANN participant and current principal of leading gTLD program applicant Donuts’ Jon Nevett wrote a detailed explanation of his concerns about the Strawman process and proposal, expressing these concerns, “The ICANN community is ever closer to realization of its goal to bring long-overdue consumer choice and competition to Internet naming. Regrettably, but perhaps predictably, reliance on the Final Applicant Guidebook (AGB) is being challenged at the last minute by recent proposals from the Business and Intellectual Property Constituencies (BC/IPC), which demand “improvements” to the already extensive trademark protections that will be part of the new gTLD landscape. Equally disturbing is ICANN staff’s apparent willingness to accommodate the demands with an end-around process that may grant intrusive changes. The end result could be one that violates ICANN’s accountability principles and its commitment to marketplace fairness, and scoffs at the community’s extensive collaboration on the issue of rights protections.” (Emphasis added/ see http://www.circleid.com/posts/20121129_new_gtlds_last_minute_end_arounds_and_fundamental_fairness/)

A great deal of the debate over the Strawman Model’s elements concerns whether they are mere implementation tweaks of existing rights protection mechanisms (RPMs) developed for the new gTLD program, or new policies that require full multi-stakeholder and GNSO consideration under established policy development procedures. For our part, we have great concerns about any process that allows a select and non-representative slice of the broad ICANN community to plant the seeds of any new policy, when following standard procedures might have produced a very different starting point – or a decision to not begin at all.

Neustar Vice President and GNSO Council member Jeffrey Neuman shared his views on this critical distinction: “The real issue is that new reliance on the terms “policy” vs. “implementation.” This is the issue that should receive top priority…when one group wants something in place without using the policy process, they call it “implementation.” Those that oppose it, call it “policy.”…The now infamous New gTLD “straw-man”: For the record, I was a part of the group that discussed the straw man in Brussels and LA over the past few weeks. I found those discussions very useful and appreciate the efforts being made by the new ICANN CEO, who I have a tremendous amount of respect for. I believe he truly will make a huge positive impact on ICANN for many years to come. But, now the debate has turned into what is policy and what is implementation. The IPC/BC and their representatives have called all of their proposals “implementation”. The NCSG, Registries, Registrars and Applicants have called much of it policy. ICANN staff has now weighed in on their thoughts and have classified certain items as implementation (thereby negating the need for GNSO policy development), and other items as policy, thereby requiring extensive involvement from the GNSO community…I believe we all need to take a step back from the issues immediately and decide once and for all an agreed upon bottom-up multi-stakeholder definition of what is “policy” and what is “implementation.” Or at the very least a framework for making that assessment when issues arise…I believe the future of the GNSO, and even the multi-stakeholder model in general hinge on the definition of these 2 words.” (Emphasis added/see http://gnso.icann.org/mailing-lists/archives/council/msg13890.html)

Finally, ICANN Ombudsman Chris LaHatte recently announced that “I have received a complaint about the process used in the recent Trademark Clearinghouse meetings”. That prompted ICANN veteran and law professor Mary Wong, who played a key role in designing the current RPMs, to post a comment stating in part, “In short, and possibly regardless of the actual motivation for or outcome of these meetings, the fact that they were held and, more particularly, how they were conducted, naturally gives rise to some concern on the part of the rest of the ICANN community – especially those who have limited means or connections within “ICANN-land” but who are deeply concerned about many of the issues worked on by the GNSO and other groups – as to their ability to meaningfully participate in ICANN policy development and decision making.”https://omblog.icann.org/?p=827#comments

We know all these people, as well as many others who have deep reservations about the deviation from standard procedures that resulted in the “Strawman Model’, and we know that they, like we, strongly support ICANN and its multi-stakeholder process. If ICANN’s strongest adherents begin to doubt its commitment to a transparent, fair, and consistent policy development process, then its ability to fend off future attacks, whether from the ITU or other quarters, will be substantially diminished.

We have been favorably impressed by CEO Chehade’s first months in his position, and we admire his “hands on” approach to meeting commitments resolving challenges as expeditiously as possible. But it’s clear to us, not only from the process by which the Strawman was developed but by some of its component parts, that repeating this approach in the future would be a very large mistake that would risk substantially weakening ICANN as an organization and even jeopardize its long-term viability.

No one can get everything they want in a multi-stakeholder process. Let’s hope that every stakeholder remembers that pursuing repeated end runs and workarounds in single-minded pursuit of the last possible scrap of policy success risks the very future of ICANN’s multi-stakeholder model.